Blind man's case against credit union over its website gets new life in California
A lawsuit alleging a credit union’s website is inaccessible to blind people has been given new life by a California appeals court.
The Fourth Appellate District ruled June 19 against San Diego County Credit Union, finding it was too early for the San Diego trial court to dismiss the case. Abelardo Martinez’s lawsuit is similar to thousands of others filed in federal courts that say websites are places of “public accommodation” under the Americans with Disabilities Act.
Martinez’s state court lawsuit also makes a claim under the Unruh Civil Rights Act. It was dismissed by the trial judge the day a trial was to start.
“Although the courts have not yet articulated a single clear standard on this issue, most of the federal circuits and one California court of appeal have held a disabled plaintiff can state a viable ADA claim for alleged unequal access to a private entity’s website if there is a sufficient nexus between the claimed barriers and the plaintiff’s ability to use or enjoy the goods and services offered at the defendant’s physical facilities,” Justice Judith Haller wrote.
Companies have been waiting on guidance from the Department of Justice for eight years now as to how to make their websites compliant with the ADA. In the meantime, plaintiffs lawyers have signed up visually impaired clients to file bundles of cases.
In 2019, there were more than 2,000 of these cases filed in federal court, according to figures gathered by Seyfarth Shaw.
Winn-Dixie was one of many companies sued by a blind plaintiff but was the first to take this type of lawsuit to trial. In 2017, it was hit with a verdict that required it to make upgrades estimated at $37,000. For their role in bringing the litigation, attorneys at Entin & Della Fera of Fort Lauderdale, Fla., and Scott Dinin of Miami were awarded more than $100,000.
Winn-Dixie's appeal is still pending, as the U.S. Court of Appeals for the 11th Circuit weighs arguments it heard in 2018. The plaintiff, Juan Carlos Gil, has filed close to 200 lawsuits, court records show.
Domino’s Pizza also tried to fight a case against it, but its pleas were rejected last year by the U.S. Supreme Court.
omino's argued in its appeal that the ADA's accommodation provisions, specifically Title III, cover only brick-and-mortar facilities and not those that operate in the virtual world. Domino's claimed that the ADA does not requires companies to provide accessibility options on their websites and in mobile phone apps so long as customers with disabilities were offered other means of access, such as through a telephone hotline.
As for the plaintiff in the San Diego County Credit Union case, Martinez is involved in close to 30 ADA lawsuits in federal court against defendants like 1-800-Flowers.com, Abercrombie & Fitch and The Children’s Place.
He is represented by Pacific Trial Attorneys.
New York’s New Accessible Absentee Ballots Aren’t Accessible Enough, Voters Say
New Yorkers with disabilities had mixed reactions to the accessible absentee ballot option that the state Board of Elections (BOE) implemented for the June 23 primary.
Voters with disabilities named a number of problems with their accessible absentee ballots, from them not being compatible with screen reader technology to having issues with printing the ballot and bringing it to the mailbox independently. These problems, voters with disabilities said, got in the way of them being able to vote independently and privately.
Dept. of Justice warns of fake flyers exempting people with disabilities from wearing mask
The Department of Justice is warning Americans that flyers on the internet regarding face masks and disabled Americans are not legit.
Some cards have been circulating online that allegedly exempt the holder from ordinances that require face coverings.
Many of these cards cite the Americans with Disabilities Act and contain the Department of Justice seal.
Authorities say all official information issued on the topic is available on ada.gov.
Anything else should be considered fraudulent.
30 Years of the ADA—What Does it Mean for Us?
If you’re older than 40, you probably remember the passage of the Americans With Disabilities Act on June 26, 1990. George H.W. Bush signed it into law.
It seems like it’s been around a lot longer than that; maybe because the push for handicap parking started in the late 1960s and hit its stride in the late 1970s. I was 26 in 1990. There is a movie that came out in 2007, Music Within, about Richard Pimentel, the Vietnam veteran credited with starting the movement to pass the ADA. I saw the movie in 2009, and don’t remember the story very well, so I looked it up again. Pimentel lost his hearing in Vietnam, and when he tried to go out for pancakes with his veteran friend who used a wheelchair, they were discouraged by the steps up to the restaurant entrance. That’s what started it all.
EEOC Issues Guidance on Antibody Testing in the Workplace
In late-March and April 2020, the Equal Employment Opportunity Commission (EEOC) released guidance addressing various questions with answers concerning COVID-19 and related workplace disability-related issues under the Americans with Disabilities Act (ADA). Recently, on June 17th, EEOC updated its guidance to include a new question regarding antibody testing.
Most of the questions concern general employee rights and privacy and employer obligations during the current state of the COVID-19 pandemic. A few of the questions relate to the anticipated gradual return to the office of employees temporarily working remotely due to the pandemic as the crisis subsides.
The EEOC’s April update, inter alia, included a determination that employers can administer COVID-19 testing (i.e. testing for active virus), and recommended that employers do the following:
- Determine that tests are accurate and reliable.
- Review guidance from the Food and Drug Administration (FDA), U.S. Centers for Disease Control and Prevention (CDC), and other public health authorities and regularly check those authorities for updates.
- Consider incidences of false positives and false negatives associated with particular tests.
- Keep in mind that a negative test does not mean an employee will not contract the virus in the future.
- Require that employees continue infection control practices, including social distancing, handwashing, and other cleanliness and disinfecting measures.
The April update was silent on whether its determination regarding COVID-19 testing also included antibody testing. Antibody testing (i.e. serological testing), is able to detect antibodies from a previous infection. However, the test can take one to three weeks for antibodies to develop following onset of symptoms, and it is not certain that antibodies provide immunity or, if so, how long immunity would last – the current reliability and utility of these tests is in question.
The June 17th update to the EEOC guidance weighs in on antibody testing in the workplace. Specifically, the EEOC provides an answer to the following question:
CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the American with Disabilities Act (ADA) may an employer require antibody testing before permitting employees to re-enter the workplace?
The EEOC concludes that antibody testing constitutes a medical examination under the ADA, and employers cannot require antibody testing before permitting employees to re-enter the workplace.
“In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. “
It is important to note that as with other types of COVID-19-related guidance, the EEOC will continue to monitor the CDC’s recommendations, and update its discussion on this topic in response to changes in the CDC’s recommendations.
Takeaway
In general COVID-19 testing methods come with administrative burdens to implement and ensure compliance. Such testing presents privacy implications, particularly with respect to testing that requires a blood sample or swab. Moreover, any information collected should be protected with access appropriately limited, particularly if the organization is using a third party. As issues and concerns around COVID-19 unfold daily, employers must prepare to address the threat as it relates to the health and safety of their workforce.